Citation Nr: 21061441 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 14-34 339 DATE: October 4, 2021 ORDER Entitlement to service connection for a left knee disability, to include arthritis and status post-knee replacement, is denied. Entitlement to service connection for a right shoulder disability, to include degenerative joint disease, is denied. Entitlement to service connection for a left shoulder disability, to include degenerative joint disease, is denied. Entitlement to an initial compensable rating for bilateral hearing loss is denied. REMANDED In addition, entitlement to service connection for lumbar spine disability, to include degenerative disc disease (DDD), DJD, and spinal stenosis is remanded. FINDINGS OF FACT 1. The probative evidence of record does not demonstrate that the Veteran's left knee disability is etiologically related to service. 2. The probative evidence of record does not demonstrate that the Veteran's right shoulder disability is etiologically related to service. 3. The probative evidence of record does not demonstrate that the Veteran's left shoulder disability is etiologically related to service. 4. For the entire appeal on period, the Veteran has had no worse than Level III hearing in both ears. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a left shoulder disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to July 1971. The Veteran's claims were last before the Board of Veterans Appeals (Board) in July 2018 wherein they were remanded to the agency of original jurisdiction (AOJ) for additional development. The requested development was completed and the claims have returned to the Board. Service Connection 1. Entitlement to service connection for a left knee disability 2. Entitlement to service connection for a right shoulder disability 3. Entitlement to service connection for a left shoulder disability The Veteran contends that his left knee and bilateral shoulder disabilities were caused by lifting heavy boxes and ammunition and loading them onto trucks during service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Arthritis (degenerative joint disease) is one of the listed chronic diseases. 38 C.F.R. § 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran's reports of lifting heavy boxes and ammunition and loading them onto trucks during service is acknowledged. Further, he has diagnoses of arthritis in his left knee and degenerative joint disease in his shoulders. Thus, the first two elements of service connection, a current diagnosis and an in-service event, have been met. Shedden, supra. Turning to whether the Veteran's knee and shoulders are related to service, the Board first notes that the July 2018 Remand previously found the July 2014 opinion to be inadequate because it was based on the absence of contemporaneous medical records. See Buchanan, infra. Thus, new examinations were ordered. In April 2019, a VA clinician reviewed the medical record and Remand order and issued almost identical opinions regarding the Veteran's left knee and shoulder disabilities: "it is accepted that the Veteran is competent to report symptoms and treatment and that his reports must be taken into account in formulating this opinion and they were. Review of currently available medical records does in fact note [diagnoses from 1999 and 2000 of arthritis in the left knee and shoulders]. This however, does not change the medical opinion noted in July 2014 based upon review of currently available medical records and veteran accounts. Though the veteran is competent and credible, there is no indication of any [left knee or shoulder] diagnosis in service. The Veteran's diagnosis of "mild" [arthritis in his knee and shoulders is 28-29] years post-service and is also many years into the Veteran's post-service profession of laying flooring which is labor intensive on the knees and shoulders. The Veteran, though credible, is not a diagnostician and cannot medically verify that his current-day [knee and shoulder conditions are] a result of lifting in service in 1971 or from any other activity in service. The currently available evidence supports that it is less likely (less than 50%) that the Veteran's current [knee and shoulder disabilities are] related to service." The Board gives the opinion great probative weight because it is based on a thorough review of the medical record and the clinician has the medical expertise to render such an opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has reviewed the remaining medical record and finds no medical evidence more probative than the VA clinician's opinion. The Board has considered the Veteran's lay opinion that his left knee and shoulder disabilities are related to service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the Veteran is competent to report pain. See Jandreau v. Nicholson, 492 F.3D. 1372, 1377 (Fed. Cir. 2007). However, the Board finds the etiology of arthritis to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Therefore, while the Veteran is competent to describe his symptoms, he cannot, as a layperson, provide competent medical evidence establishing a diagnosis or connection between the two. Consequently, the Board gives more probative weight to the medical evidence discussed above. To the extent that the Veteran has reported a continuity of symptomology of arthritis since service, the Board again finds the Veteran competent to report pain. However, "pain" does not equate to "arthritis." Further, the Veteran worked for 30 years performing flooring work, which as pointed out by the VA clinician, is labor intensive work. Thus, the Board does not find that a continuity of symptomology exists. Thus, the weight of the evidence is against the claim for service connection for a left knee and bilateral shoulder disabilities. Accordingly, the claims are denied. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Ratings 4. Entitlement to an initial compensable rating for bilateral hearing loss The Veteran contends that he should be awarded a higher initial rating for his service-connected bilateral hearing loss because his hearing is worse than the rating reflects. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). Here, the Board finds that the ratings have been consistent through the period at issue. Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. 38 C.F.R. § 4.85. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. Id. Where there is an exceptional pattern of hearing impairment, a rating based on puretone thresholds alone may be assigned. 38 C.F.R. § 4.86. In this regard, regulations provide that where the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 hertz) is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran has attended three VA examinations that address his hearing ability. In June 2012, audiometric testing revealed the following: HERTZ 1000 2000 3000 4000 Average RIGHT 15 60 70 70 54 LEFT 40 70 70 70 62 Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 94 percent in the right ear and 84 percent in the left ear. Using Table VI in 38 C.F.R. § 4.85, this results in a numeric designation of I in the right ear and III in the left ear. Using these numeric designations, this results in a noncompensable rating under Table VII. The second VA examination was in December 2012. Audiometric testing revealed the following: HERTZ 1000 2000 3000 4000 Average RIGHT 30 60 70 70 58 LEFT 55 75 70 70 68 Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 82 percent in the right ear and 52 percent in the left ear. However, the clinician found the test results to be invalid because they contradicted much higher testing six months prior. Thus, the Board gives this audiometric examination little probative weight because the audiologist has the medical expertise to interpret audiometric testing. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The most recent examination was in December 2020. Audiometric testing revealed the following: HERTZ 1000 2000 3000 4000 Average RIGHT 30 65 70 70 59 LEFT 40 70 75 75 65 Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 88 percent in the right ear and 84 percent in the left ear. This results in a numeric designation of III for both ears, and a noncompensable rating under Table VII. Under the rating schedule, hearing acuity must be more severe to qualify for a compensable rating. Based on the above, the Board finds that the claim must be denied. The Board emphasizes that the assignment of disability ratings for hearing impairment is primarily derived from a mechanical formula based on levels of puretone threshold average and speech discrimination. Lendenmann, 3 Vet. App. 345. Using the prescribed tables, the Veteran's hearing loss is not of a severity that warrants a compensable evaluation. Through various statements of the Veteran and others, it is reported that the Veteran speaks loudly, asks people to repeat themselves, and struggles to hear conversations clearly. The Veteran's report of difficulty hearing is acknowledged; however, this is reflective of the type of functional difficulty that would be expected to be caused by his recorded levels of hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Manifestations such as difficulty hearing speech are the types of difficulties contemplated by the schedular criteria for hearing loss.). Accordingly, the examinations of record are afforded great probative value in determining the Veteran's level of hearing impairment. No other medical record is probative in assessing the Veteran's hearing ability; the Veteran submitted an audiogram in October 2012, but the there is no report that the Maryland CNC test was used for speech recognition. They do not show exceptional patterns of hearing loss such that the CNC score is not necessary. Therefore, they are not sufficient for rating purposes. The most probative medical evidence as to the severity of the Veteran's bilateral hearing loss are the audiometric findings performed by VA examiners, and those discussed above reveal that the Veteran's hearing loss does not warrant a compensable rating. In reaching this conclusion, the Board has considered the applicability of the reasonable doubt doctrine; however, since the preponderance of the evidence is against his claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 5. Entitlement to service connection for a lumbar spine disability is remanded. In the July 2018 Board Remand, the Veteran's claim for service connection for a back disability was remanded to obtain an addendum opinion. It was noted in the Remand that the August 2014 VA opinion was inadequate because it relied on the lack of lack of contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006). In addition, the Board noted that the Veteran reported back pain in January 1971 during service. The Veteran attended a VA examination in April 2019. In answering whether it was at least as likely as not that the Veteran's back disability was a result of heavy lifting in service, the clinician answered as follows: "A diligent search of all available medical records fails to produce any evidence that Veterans chronic lower back pain with radiculopathy began while Veteran was on active duty. Veteran installed flooring for >30 years after [separation]. The medical record for his back pain begins years after his [separation] and is documented in VA records, but no nexus is ever referred to." The Board finds this opinion to be inadequate for several reasons. First, the clinician states there is no evidence that the Veteran's back pain began during service, however the Veteran reported back pain during service. See VBMS, document labeled STR-Medical, receipt date June 27, 1977, page 43 of 70. Further, the clinician states that the Veteran installed flooring for 30 years after service, but doesn't explain the importance of this statement. Finally, the clinician states that back pain is documented, but no nexus is ever referred to in the medical records. The Board infers from that statement that the clinician's negative opinion was based, at least in part, on the lack of a nexus opinion in the medical records. However, the Board requested the opinion from a clinician because it does not have the medical expertise to render such an opinion. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Given the above inadequacies, a remand for an addendum opinion is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a qualified clinician. An in-person examination is not required unless deemed necessary and appropriate by the clinician. The claims file should be made available to the clinician and be reviewed prior to the issuance of an opinion. After a review of the file, the clinician should answer the following question: Whether it is as least as likely as not (50 percent probability or more) that the back disability (to include DDD/DJD and spinal stenosis) had its onset (a) during service or (b) was otherwise causally or etiologically related to service, to include any symptoms manifested during service, specifically the 1971 complaint of back pain, as well as the Veteran's contention that the disability is a result of heavy lifting during service. See VBMS, document labeled STR-Medical, receipt date June 27, 1977, page 43 of 70. A complete rationale should accompany any opinion provided. The physician is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion. The clinician is further advised that lack of contemporaneous medical evidence is not, by itself, a basis to conclude that there is a lack of nexus between a back disability and the Veteran's report of in-service injury due to heavy lifting. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006). K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. M. Hitchcock The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.